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Bête Voir

June 7th, 2006 · 39 Comments

I was once again invited to do my civic duty by going through the Brazil-esque process of juror selection at a courthouse in downtown D.C. today, and I found myself thinking of a quandary my friend Baylen Linnekin faced last year. A commited anti–Drug War activist, he’d had an opportunity to serve on a drug case, but been promptly removed from the pool upon revealing his views on the subject. He’d solicited comments, and at the time, I opined that it would’ve been perfectly morally justifiable to fudge that point (or, if we want to be sticklers about it, to perjure yourself) in the interest of preventing someone from being convicted of violating an unjust law. I even recalled musing it was a shame I hadn’t had a chance to do something like that last time I was called, when (thanks to a last-minute settlement) I didn’t even make it to voir dire.

Well, I had my chance today. And as you may have surmised, since I’m not quite dim enough to confess perjury on a public blog, I passed.

After a mind numbing process of being shunted around and lined up in a specific order which, for reasons opaque to me, was apparently very important, we were introduced to the defendant, Solomon. He was a lanky black man in a brown windbreaker who looked about 65. His attorney speaks briefly, and I immediately wonder how hard it was for the District to find someone who managed to get through law school despite being this inept. The majestic equality of the right to counsel—Anatole France would be proud. We were told he was charged with “possession with intent to distribute” of oxycodone and vicodin. (I think he may have worked at some kind of medical facility… I was hoping they might be charging them with stealing the drugs from his employer or something like that; I could vote the merits on that. Nope.) We went through the usual litany of questions, with each of the hundred or so prospective jurors writing down the numbers of any they answered “yes” to. “Number Six: Are you or any close friends or relatives lawyers, or have you or any of those people studied law?” Oh, goodness yes… “some of my best friends,” as they say. “Number Nine: Do you have strong feelings about drugs or drug dealing that might prevent you from objectively applying the law to the facts of the case? [She pauses, and then, as an afterthought] … or about the drug laws, I should add.”

I know there is no chance in hell I will vote to convict. They could have videotape of him prancing around Times Square flinging pills to the crowd from a huge sack like some deranged Santa and I’d say “not guilty.” What if that were the difference between this guy doing time for a victimless crime and getting off? Would they bother retrying if I was the lone holdout? Would it even come to that? Perhaps I could persuade the other jurors that reasonable doubt existed, whether or not the guy seemed guilty.

But I marked down a nine. And then, just before my turn came to approach the white-noise cone of silence around the bench, we broke for lunch. And I stewed for an hour and a half. What was my problem? Sure, I’d just as soon not do jury duty, but that was no reason to throw this poor bastard to the wolves. Did I really feel an obligation to tell the truth to a court that was theatening this apparently peaceful old man with some draconian punishment?

Apparently I did. “You wrote down number nine,” the judge asks after lunch, ” Can you explain that?” I say my moral views would make it impossible for me to render a guilty verdict for a non-violent drug offence. “What if I told you,” she says, leaning forward, “that it was your duty to decide according to the law as I explained it to you?” I eye counsel, who are standing to either side of me jotting notes, wonder if the defense lawyer is hoping I’ll just go along, consider trying to debate the merits of jury nullification, consider reversing course and solemnly promising to do my very, very best… but ultimately just say: “I wouldn’t be able to agree. I think my duty would be to acquit.” She shrugs and tells me I’m excused.

I’m not remotely sure that was the right thing to do. I suppose I surprised myself: I’ve got enough residual respect for the American legal system, even when it acts in the service of perverse laws, that I felt uncomfortable breaking a juror’s oath, for all the best reasons. Of course, I understand all the reasons why a liberal society might want to make use of citizen jurors, and why, if we’re going to have such a system, those jurors have to be able to bracket (to some extent) their disagreements with the law, have to agree not to use the position to enact their policy preferences. But I doubt all that’s much consolation to Solomon. I wonder if I’d known the punishment he faced, and it were severe, that would have pushed me to try to get on the jury. The question that really makes me queasy, though, is: What if this had been some college student, someone I could look at and identify with, who’d have made me think “that could be one of half a dozen old friends of mine with a little bad luck”? What if, to put it a little more bluntly, he’d been 22 and white instead of 65 and black? I don’t know whether I made the right choice or not; I do know I want to believe I’d have made the same call whoever the defendant was. But part of me wonders, and it’s an ugly thought.

Addendum: Matt “Mittens” Yglesias and Radley Balko both favor the stealth approach, and the more I think about it, the more confident I feel that’s the route I should have gone. (I should note that given the norms about refusing to dig too much into jurors’ motives, I had no serious worries about actually being charged with perjury later; it was more a question of which of competing obligations was stronger.) Mittens echoes one of the points that was running through my head at voir, and which in retrospect should’ve been decisive: It’s clear that the architects of our legal system meant for jurors to act on their convictions about the justice of the laws they’re applying; a system of citizen jurors, with no special fact-finding expertise, makes no sense otherwise. Asking questions designed to exclude people who are prepared to do that undermines the purpose of having jurors, so complying with that system of exclusion can’t be part of one’s obligations qua juror. Well, perhaps I’ll see what I can find out about the disposition of the case. He may be a sufficiently sympathetic defendant that he’ll get off without my help.

Tags: Law


       

 

39 responses so far ↓

  • 1 Baylen Linnekin // Jun 7, 2006 at 10:42 pm

    It’s a sad, fucked-up system that forces us to choose between such tragically flawed options. I felt like shit every day for a month after I made the same choice you did, and I still have no idea if I did the right thing. If there is such a thing.

  • 2 LH // Jun 8, 2006 at 8:59 am

    What a wonderfully well-written post. I’ve had the same, completely hypothetical debates with myself about what I would do if I were ever called to serve on a jury where the death penalty was an option.

    I served on a jury a little over a year ago in DC that voted to aquit someone of a drug crime, in spite of the horribly inept defense counsel in the case who tried to get us to reasonable doubt in his closing with an unreasonable argument that relied on him either not being able to tell left from right, or assuming the jury could not.

    I and everyone else on the jury was happy to be able to rely very heavily on reasonable doubt to let the defendant go free. Maybe I was on an exceptional jury, but if my experience is anything to go by, you should not feel too horrible about your decision. DC is full of people whose sympathies fall with the defendant in this type of crime, who can nonetheless say with perfect honesty that they will apply the law to the facts.

  • 3 Anon // Jun 8, 2006 at 1:34 pm

    I had the same decision to make about a week ago; I chose the other way, and felt fine about it (I’ve read too much in the ‘duty to obey the law’ literature to worry much). Alas, I still didn’t make it on the jury, for whatever reason.

  • 4 Brian Moore // Jun 8, 2006 at 1:50 pm

    It’s entirely your call, and you shouldn’t feel guilty either way.

    To anyone, like Anon above, who decides to risk personal penalty for acquitting someone like Solomon, I salute you.

  • 5 Bob Weber // Jun 8, 2006 at 1:59 pm

    Suggestion: You can throw a little monkey-wrench into the machine during voir dire by asking the judge if your answers can lead to legal penalties against you. If the judge says “no”, fine, say what you will. If the judge says “yes”, request the assistance of counsel in giving your answers. That will cause a little stir!

  • 6 c // Jun 8, 2006 at 2:17 pm

    Out of all of my political experience—and I’ve had a lot—I believe that the single most efficacious thing might have been passing out FIJA pamphlets to incoming jurors in front of a county courthouse. We have it on good authority that at least one judge got wind of our educational endeavors and was miffed. I can only conjecture about whether anyone morally-innocent-but-legally-guilty got off that day due to our efforts.

    Still as laws seem to become ever more arbitrary, byzantine, and punitive, the importance of spreading the jury nullification gospel increases proportionally.

  • 7 chainsaw // Jun 8, 2006 at 2:23 pm

    a hypothetical: you believe, prior to and during voir dire, that you don’t have strong feelings about drug laws. Then, during deliberation, you have a change of heart and you’re now aware of the more fundamental issues, and can’t vote to convict. Seems like this could prevent you from being charged with perjury.

  • 8 Mark Bainter // Jun 8, 2006 at 2:49 pm

    Man…I certainly sympathize. I wrestled with this myself. Here is the bottom line I came to.

    We are not obligated, as jurors, to obey the instructions of the court. Especially as it pertains to unjust laws. The whole point of that is for citizens to be a check on the law.

    So when it comes to questions like the one you had to answer I try to see the underlying point they’re trying to get at, and I answer it honestly to the extent that they are legally allowed to ask it vs my rights as a juror.

    So, the question here is, could I rule objectively. The answer is yes. I would listen to all the facts of the case, and if this man was guilty of breaking a valid law I would find him guilty. If however, the court is attempting to prosecute him unjustly, I would find him innocent.

    In addition, I would welcome the perjury charge. I wouldn’t welcome the legal fees, but I would welcome the chance to see this case tried in court. My bet is that I wouldnt’ be that lucky. That they wouldn’t dare charge me with perjury if I’m going to contest the language of the question in light of the well established precedent of nullification. It’s too risky. If the supreme court struck down the practice they’d be screwed.

    No, they depend on this being a grey area to keep honest folks like us who are trying to do the right thing off their juries.

    Well, if it can be a grey area to them, it can be me to me too. I can be objective. I just objectively always come to the same conclusion. The drug laws are wrong.

  • 9 Amy Phillips // Jun 8, 2006 at 4:54 pm

    Now I’m wondering whether, due to the phrasing of the question, an answer in the negative could be justified.

    I have strong feelings about drugs and drug dealing and drug laws. But I believe that those feelings make me more objective about the law, not less. I believe that an objective application of the law, per the common law tradition that underpins our justice system, requires jurors to consider whether the law is just and right, and I believe that to be the case regardless of the law in question, the facts of the case, or the identity of the defendant. In other words, I believe that I would be objectively applying the law if I would vote to acquit Rush Limbaugh of drug possession just as I would someone who isn’t a lying sack of crap. I would be objectively applying the law if I nullified a case of crack possession just as I would a case of powder cocaine possession.

    I’m not sure whether I believe my own argument there… It’s obviously not what the judge was trying to act. I’m just thinking out loud about whether there’s a way that if I were in this situation, I could tell myself that I wasn’t committing perjury.

  • 10 tde // Jun 8, 2006 at 5:24 pm

    Jury nullification has a pretty shakey legal underpinning and, even if it did not, it is a really, really bad idea. Advocating lying about one’s intent to “nullify” the laws is even worse.

    Suppose a prospective juror hates jews or blacks and thinks that they should be locked up no matter what they did. Or suppose prospective juror thinks it is never a crime to shoot a jew or a black person. Further suppose prospective juror lies about this during jury selection.

    Still in favor of jury nullification?

  • 11 JamesA // Jun 8, 2006 at 5:53 pm

    You did the right thing, IMO. Jurors aren’t supposed to determine the rightness of the law, rather to act as witnesses to make sure that the law was in fact broken. The rightness of the law is for the constitutional courts and congress to decide, not the criminal and civil courts.

  • 12 Julian Sanchez // Jun 8, 2006 at 6:47 pm

    “Still in favor of jury nullification?”

    Well, yeah. Jurors should nullify unjust laws, and not nullify just ones. Observing that it would be bad for some people to fail to apply morally good laws is (in itself) no argument at all for similarly applying a morally bad one.

    I think what you meant to argue is that assuming most laws in fact meet some minimum standard of being actually just, we’re likely to get worse rather than better outcome if jurors always feel entitled to vote the verdict that comports with their individual (presumably more fallible or erratic) moral judgement than with the law and the facts. That’s an open, empirical question: It will depend on how many people actually are being punished by unjust laws and on how many people really would vote to release genuine criminals. (At the level of the individual juror, as opposed to the policy of the legal system, there’s an interesting question about when you’re certain enough in a judgement to deviate from a general rule you recognize as binding grounded on the presumption of a systematic tendency toward justice and individual fallibility. Presumably even the staunchest opponent of nullification would not vote to convict a defendant under a law that prescribed the death penalty for the crime of being Jewish.) At any rate, though, if that’s the case, it’s not obvious what the point of a citizen jury system is.

  • 13 tde // Jun 8, 2006 at 6:56 pm

    I guess the question is whether you feel safer having your fate determined by democratically enacted laws (as imperfect as they and the system are) versus having your fate determined by 1 person on a jury who feels free to lie about their intent to disregard laws s/he disagrees with.

  • 14 Daniel Joyce // Jun 8, 2006 at 7:19 pm

    While Jury Nullification is a good thing, the reason it is opposed so judicially now is that in the 60s, it was nearly impossible to convict a white man in the south of murdering a black man. Same goes other group on group violence.

    The usually predominately white jurors didn’t consider it a crime to kill a black person. At least one deserving a lengthy person term or the death penalty. Didn’t matter how guilty the guy was, or how much evidence there was.

    So we’re left with the dichotomy as it stands. Juries and judges enforce existing laws. Don’t like a law? Get the legislature to overturn it.

    This is the predominate view of the courts. Because otherwise, jury nullification can lead to bad results.

  • 15 Bob // Jun 8, 2006 at 8:00 pm

    Note that the death penalty is a special case, an especially bad one in this situation. The trial has 2 phases. During the penalty phase, potential jurors who don’t believe in the death penalty are removed from the jury. The remaining so-called “death eligible” jury is obviously more likely to impose the death penalty than if the large numbers of Americans who don’t agree with the death penalty were on the jury. Another reason the death penalty in America doesn’t work.

  • 16 Brian // Jun 8, 2006 at 8:16 pm

    The legal system is unjust and there is no obligation to tell the truth. Waiting for the legislature to do something about it? You all might as well wait for hell to freeze over. Our whole government is corrupt, and since when do they follow laws?

    Julian blew a nearly effortless chance to make a change. Now one more person’s life may be ruined and all of our taxes are paying for it.

    You people that argue against jury nullification are probably against secession and the right to free association too because that’s the same argument. “The south used secession and they had slaves, so secession is bad.” “Free association is not fair, because in the past, there was whites only hiring”. In fact, you could probably say the same about most any liberty.

    There’s very little that can be done to determine if a person is saying not guilty for nullification purposes. So I hope they summon me for jury slavery.

  • 17 Chris Monnier // Jun 9, 2006 at 12:22 am

    I think you can creatively interpret the question to answer if without committing perjury:

    > Do you have strong feelings about drugs or drug dealing that might prevent you from objectively applying the law to the facts of the case? [She pauses, and then, as an afterthought] … or about the drug laws, I should add.

    What’s the definition of strong?

    Illegal drugs? Prescription drugs? Caffeine?

    I can objectively apply laws and still nullify them…after all, I’m objectively applying my right to nullify bad laws. There’s nothing inherently subjective about jury nullification.

  • 18 I.I // Jun 9, 2006 at 12:26 am

    “Number Nine: Do you have strong feelings about drugs or drug dealing that might prevent you from objectively applying the law to the facts of the case? [She pauses, and then, as an afterthought] … or about the drug laws, I should add.”

    One can respond to this question with a perfectly truthful “no”. The text of the Constitution of the United States is the highest law of the land. Any “law”, including acts of congress and scotus decisions, which violates the Constitution is not law.

    Therefore, there is nothing stopping you from applying the law, specifically the tenth amendment, to the facts of a drug case in an absolutely objective manner.

  • 19 Original anon // Jun 9, 2006 at 12:54 am

    Keep in mind there are two separate questions: the institutional one of how we should arrange juries, etc., so as to encourage or discourage nullification; and the individual question of how, given the institutions as they are, one ought to act when asked such questions. I have absolutely no doubt in my mind that I did the right thing perjuring myself and attempting to get on that jury last week, and I’m quite annoyed by the at least 20-odd people in front of me who took the cheap “I’m opposed to the drug laws” way out, thereby guaranteeing our defendant a jury stacked against him/her. The law may present itself as a seamless web, but we don’t have to accept it as such; even if it’s mostly just, the drug laws clearly are not.

    Also, am I the only one who thinks the judge’s question was hilarious? “Well, gee, Your Honor, now that you’ve told me I’m wrong about a deeply important moral question, I guess I must be wrong! How foolish I was to think that I should come to moral judgments on my own!”

  • 20 Conrad // Jun 9, 2006 at 12:56 am

    “… that it was your duty to decide according to the law …”

    Great, this means you can say “yes” and serve on the jury. You’ll decide the case according to the law. The source of all law is the Constitution. Prohibitions against non-violent drug use clearly violate the Constitution. The most basic evidence for this is the prohibition amendment and its subsequent repeal — the fact that the Constitution needed to be amended in order to outlaw a drug is a direct admission that a drug could not be outlawed without violating the Constitution. Current drug use prohibitions were not passed as Constitutional amendments and therefore are non-laws.

  • 21 tde // Jun 9, 2006 at 1:45 am

    “Our whole government is corrupt, and since when do they follow laws?”

    If your really believe that, you need to start shooting or at least something more forceful than waiting to cast a sneaky vote on a jury.

    But the thing that just amazes me is the fuzzy thinking here. Several posters seem to think that the government is bad, the laws stupid and that the righteous among us should lie and engage in jury nullification. Okay – fair enough. But did it occur to you that the point of these imperfect laws is to protect people from wingnuts who might decide, for example, that there is nothing criminal about killing a black man?

    Sure, if all jurors were wise and rational, jury nullification might be a good idea. But if that were the case, then we wouldn’t need juries anyway would we?

  • 22 Ralph // Jun 9, 2006 at 2:19 am

    I can’t help noting (arguably a bit off topic) that punishments for selling drugs are much more severe than those for buying or using. Anatole France would appreciate that therefore Rush Limbaugh is less likely to get in trouble for being involved with illegal drugs — after all, Limbaugh doesn’t need the money that comes from actually selling any pills.

  • 23 Mike // Jun 9, 2006 at 9:22 am

    I had the same experience but chose the opposite route. I lied – yes, perjured myself – in a federal courthouse in NY. I was selected to serve on a drug racketeering case because I said that I would be able to impartially judge the facts of the case as presented. Did I worry that Iââ?¬â?¢d be found out and thrown in the clink? Hell yes; every day during the trial and for months after.

    One of my fellow jurors – when it was announced that the defendant would exercise his 5th Amendment rights – said, “If he won’t testify he’s guilty.” I countered by reminding him of his oath to be impartial. Delicious irony there, huh?

    Sad to say that the defendant changed his plea during the trail and we never got to render a decision. We were thanks by the judge and allowed to go on our way.

    Better luck next time, I tell myself.

  • 24 damaged justice // Jun 9, 2006 at 9:39 am

    The comments from tde and others are the typical non-arguments trotted out to illustrate the supposed inevitable negative consequences of jurors exercising their right to nullify bad law, arguing that this will lead to people nullifying good law as well as bad. This not only ignores the context and history of nullification, it ignores the fact that most people recognize the distinction between mala in se and mala prohibitum (more or less, that which is wrong in itself, and that which is supposedly wrong because someone has declared it so).

    Tegardless of intellectual level or moral values, pretty much every individual is a rational actor. Drug warriors don’t believe this, and neither do those who argue against jury nullification.

  • 25 tde // Jun 9, 2006 at 12:08 pm

    damaged -

    I’m not a drug warrier – I say legalize and tax it.

    But, perhaps instead of trying to be a smart ass by dismissing my point as a “non-argument” why don’t you grow a pair and actually address my point: namely that advocating secretive jury nullification means that you also advocate KKK members right to vote against convicting people of killing blacks.

    Unless your position is that only decent, fairminded people who agree with you should engage in jury nullification and everyone else shouldn’t. I will agree with you there, but that is reasoning of a young child.

  • 26 Julian Sanchez // Jun 9, 2006 at 12:30 pm

    TDE:
    First, it might be useful to distinguish between what we want to say as a matter of public policy, and what we want to say from the perspective of an individual person facing a moral decision about whether to try to nullify. We might, for example, say that on aggregate it’s justified to have a policy that seeks to prevent people from replacing their own judgment for the law, but that it might, from an individual perspective, be the moral thing to do to try to get around that policy. I’m not necessarily saying that’s my view, just that it’s not obvious those things couldn’t both be right.

    Second, I think in the general class of questions about when one should obey the law, you *do* end up having to fall back on what you regard as the childish position that sometimes it’s justified just when it’s done in a just cause. I assume you can imagine any number of possible laws so morally grotesque that it would be obligatory to disobey them. If you’re ordered to help round up the Jews for a pogrom, even according to a procedurally pristine law, you’re not going to obey. And it’s not really an answer if someone who’s encouraging you to go along says: “But you don’t think people have a right to just disobey the law against rape.” Because whatever the law says, people have neither the right to conduct pogroms nor the right to commit rape. If the point is there’s a case to be made within certain limits of deferring to the law against your own judgement, I’ll agree. But its obvious there’s some threshold at which that ceases to apply: The question is not whether it exists for any case, but where it is.

  • 27 indrax // Jun 9, 2006 at 1:17 pm

    If they ask you to rule according to the law, doesn’t that law include the constitution?

    I see Chris Monnier already adressed this, but I just want to second it.

  • 28 indrax // Jun 9, 2006 at 1:21 pm

    Actually, I will add that considering the constitution not only allows for jury nullification, but allows for finding the drug law unconstitutional, even if it were not unjust.

  • 29 tde // Jun 9, 2006 at 1:27 pm

    J Sanchez

    What about some different possibilities: civil disobedience within the confines of the jury system? Be very careful about what you say during jury selection; e.g. repeat “it would depend on the facts and you don’t know what the facts are.” If the Court presses you, you could ask “Are you asking me to make up my mind about this case before I hear the evidence, your Honor?” Then vote your conscience during deliberations. Downside is you would have to subject yourself to possible sanctions from court but you would succeed in derailing a trial that you think is unjust.

    I realize this is not consistent with some of my posts above, but after I thought about it, the thing that seems to bother me most about the position advocated by some is its, well, sneakiness. Lying about one’s views and then using some pretextual reason during deliberations seems too underhanded. If there is an unjust law, it seems that it is best if ones’ opposition to it is stated.

    I think that “jury nullification” does, in fact, take place often but people don’t describe it as such. I was on a jury once re a robbery/battery charge and I didn’t think the guilt was established beyond a reasonable doubt and I would not have had any problem voting to convict the guy if the evidence had been better. But there was another juror who would not have convicted the guy, period. She just kept saying that you couldn’t believe anything that the police said. Well, perhaps, but the testimony that mattered was from the people who were robbed and beaten. All the police testified about was picking up the guy and some other tangential matters. (Frankly, I think the DA called the police just so he could put someone on the stand in a nice uniform with a shiny badge – the cops didn’t need to testify at all.)

    Anyway, whether conscious or not the other juror was nullifying the law because she refused to look at the facts. This anecdote doesn’t bear much on the argument – its just my experience.

  • 30 damaged justice // Jun 9, 2006 at 1:41 pm

    I’m not a drug warrier – I say legalize and tax it.

    You are a drug warrior of the lesser kind. “The power to tax is the power to destroy.”

    But, perhaps instead of trying to be a smart ass by dismissing my point as a “non-argument” why don’t you grow a pair and actually address my point: namely that advocating secretive jury nullification means that you also advocate KKK members right to vote against convicting people of killing blacks.

    Because your point is both silly and wrong. There is no such thing as the right to violate the rights of another.

    Unless your position is that only decent, fairminded people who agree with you should engage in jury nullification and everyone else shouldn’t. I will agree with you there, but that is reasoning of a young child.

    Unsurprisingly, your interpretation is incorrect.

  • 31 tde // Jun 9, 2006 at 2:00 pm

    Why don’t you come back when you have something constructive to say, rather than lame-ass insults, boy?

  • 32 Josh // Jun 9, 2006 at 4:12 pm

    A couple things
    1 If the individual involved didn’t receive the drugs by stealing them from a pharmacy or paying them from someone who stole them from a pharmacy, how did he obtain them? I imagine that he purchased them with a fraudulent prescription, and I’d be curious whether he bore the full cost of this or if a healthcare plan paid for a portion of it. Assuming that he did bear the full cost, the law still should not be nullified in his favor unless you believe that upholding the right of individuals to buy pharmaceutical drugs without FDA regulation is worth the harms of jury nullification.

    2 I think the very issue of potential theft/fraud etc. indicates a major reason not to vote for jury nullification even in cases of laws which you disagree with and find unjust. While I personally think that narcotics should be legalized, given that they are not, it is important that the law be applied as effectively, universally, and objectively as possible. The major harm of drug illegalization lies in the penumbral increase of crime (particularly violent crime) around the drug trade and the negative consequences that has for the communities which it effects. By letting a drug dealer go free, the nullifying juror makes the illegal sale of drugs more safe, granting more of an incentive for more people to enter a business which is intensely harmful to the surrounding community. While it is ultimately the criminalization of drug use which causes this unfortunate cycle, that fundamental fact is the not the issue in jury box over which you have control. Your decision is whether or not to apply this general law in a specific case. I take seriously the objection to this view that in convicting this person, you are punishing them without retributive warrant and using them as a means to the end of community safety. Ultimately, though, this person is engaging in conduct which he is not willing to pay the legal price for and which in the current context is harmful to those around him.

  • 33 Nemo // Jun 9, 2006 at 5:49 pm

    “Number Nine: Do you have strong feelings about drugs or drug dealing that might prevent you from objectively applying the law to the facts of the case? [She pauses, and then, as an afterthought] … or about the drug laws, I should add.”

    Answer: “I cannot apply the law to the facts of this case until I hear the facts and the law presented. I will not decide about the case either way until after I hear the facts and law presented.”

    It’s a true statement unless you have already made up your mind to vote guilty or not guilty without knowing what the facts and the law are. It is a true statement even if you think the law that will be presented is abhorrent. It is true because you haven’t yet heard the law and the facts fully presented.

    It may bring more questions. It may get you peremptorily challenged. It won’t get you removed for cause because you have not demonstrated any prejudice in the case. As a general rule, if either attorney’s questions are offensive to your basic sense of justice, it is better to cost them a peremptory challenge than to let them get you removed for cause.

    So answer every question in such a way that your answer is true, and your answer will not support a challenge for cause by demonstrating prejudice either way in the case. Remember: you have not heard the case presented yet, so you cannot decide anything about it.

    If either attorney becomes too offensive in grilling you about your philosophical and political beliefs, answer the question with a question: “I’m not sure I understand your question. Are you asking me to decide the case now, before the facts and law are presented?”

    They will rephrase the question, possibly becoming so offensive that other prospective jurors will be offended.

    Always be pleasant and polite, and don’t be bothered that either attorney or the judge will think you are as dumb as a post. You are there to hear the facts and law presented and to decide based on that. You are not there to show anybody how brilliant or well informed you are. Worst case is that other members of the voir dire panel will catch on to what the attorney is trying to do — get you (and them) to decide the case before hearing it fully.

    If you demonstrate some courage, and absolutely refuse to give any opinion on the case before you hear it presented, there is a chance that the next juror questioned will follow your example.

    In the jury room, never mention jury nullification. Never. Discuss whether you found some witness credible. Did he hesitate before saying something? Did he have shifty eyes and a sneaky demeanor on the stand? Did he say something that in your ordinary experience is highly unlikely, like performing a superhuman feat, or seeing something in the dark or through a wall?

    If you believe a witness lied in any statement he made, you are entitled to believe he lied in every statement he made. Once you don’t believe a witness, you have ample reason to vote whatever way that would imply.

  • 34 ACW // Jun 9, 2006 at 7:13 pm

    Nemo-good idea. Also, you could say “regardless of my personal feelings, I will uphold the law”-you could vote not guilty by claiming that the law you uphold-the Constitution-doesn’t say anything about drug use (and prohibition was repealed), but that it forbids cruel and unusual punishment-cruel to the defendant, and unusual to him.

  • 35 I.I // Jun 9, 2006 at 8:07 pm

    disfunct wrote:

    Jurors aren’t supposed to determine the rightness of the law, rather to act as witnesses to make sure that the law was in fact broken. The rightness of the law is for the constitutional courts and congress to decide, not the criminal and civil courts.

    The founding fathers would have disagreed with you. John Adams said of jury nullification, “It is not only [the juror's] right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” John Jay, the first chief justice of the Supreme Court, said “The jury has the right to judge both the law as well as the fact in controversy.”

    The jury is one of the most important checks on governmental tyranny, and the Founders knew that. It’s a shame that people have become so willing to abandon moral judgment to their rulers.

  • 36 kaptinemo // Jun 12, 2006 at 9:58 am

    For those who do not beleive that the jury has the right to judge the law, the law says otherwise: Look up the case of US vs. Moylan. This should be common knowledge of every public defender and drug prohibition opponent. The summary says it all:

    We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision.� (US vs Moylan, 417 F 2d 1002, 1006 (1969)).

    Any plainer and it devolves into baby-talk.

  • 37 JP // Jun 12, 2006 at 4:01 pm

    Just curious: has anyone ever pleaded the fith during juror questioning? Is there a plausible argument to defend it?

  • 38 Brian // Jun 12, 2006 at 10:28 pm

    It’s a difficult dilemma and here’s another twist.

    If you’re willing to lie to the judge, are you also willing to lie to your fellow jurors?

    Suppose that the prosecution proved beyond a reasonable doubt (with physical evidence, video recordings, etc.) in your mind that a cancer victim was growing pot for medicinal purposes. Would you be willing to lie to the other jurors, saying something like, “I have a master’s degree in botany and that wasn’t marijuana, it was a northern everglade fern — any botanist could see that.”

    Suppose you knew that your fellow jurors would be swayed by an argument from authority (but not by an argument against the drug war) — would you lie and manipulate to save this cancer victim from jail?

  • 39 ed // Jun 13, 2006 at 5:35 am

    that’s a very interesting post. followed by some equally interesting comments. well, here’s my 2 cents:

    i think maybe you just overthought this. it’s clear you think (as i do) that the whole ‘drug war’ is a crock/farce/police-state-trial-balloon, so you can’t have too much respect left (as i don’t) for the minions of the system that operates and maintains and squeals yearly for
    ever-bigger budgets to expand their farce.

    so just lie to them. hell, they’re lying to YOU.
    they KNOW good and well they have no right to
    instruct you, the juror, to follow the law as they
    tell you to. they know good & well the centuries-
    old common-law traditions of jury nullification.
    they know good & well who peter zenger was.

    so lie right back to them. you didn’t acquit the
    defendant because of some silly idea you had about
    drug laws being “wrong”, your honor! heck no!
    you just thought the prosecution hadn’t proved him
    “guilty….reasonable doubt!” that’s all!

    tell the truth to your friends, family, people who
    you hope to influence to do the same? sure!

    but when you speak to the oppressors?
    lie your butt off, and don’t give it a second
    thought.

    barring that, i liked the earlier post, where the other fellow suggested that you just “changed your
    mind” while you were doing your duty as a juror.